State v. Crespo, 109082
| Decision Date | 27 October 1992 |
| Docket Number | No. 109082,109082 |
| Citation | 42 Conn.Supp. 371,621 A.2d 337 |
| Court | Connecticut Superior Court |
| Parties | STATE of Connecticut v. Carlos CRESPO. -New Britain at Hartford |
David J. Cosgrove, New Britain, for the petitioner.
Peter W. Soulsby, Marlborough, for the state.
This case presents the issue of whether jurisdiction over an application for review of sentence, previously dismissed for untimely filing can be conferred upon the Sentence Review Division of the Superior Court by an order of a habeas court that is based on a stipulation entered into by counsel for the petitioner and the state.
This is the second time the petitioner has sought a review of his sentence by the Sentence Review Division of the Superior Court (division). In a decision dated September 24, 1991, the petitioner's earlier petition was dismissed for lack of jurisdiction due to the tardy filing of his application. At that time the division was found to be without jurisdiction over the matter as the petitioner had filed his application for sentence review more than thirteen months after his sentence was imposed. The decision was based upon the provisions of General Statutes § 51-195 and Practice Book § 938, which empower the division to hear applications for review that have been filed within thirty days of the imposition of sentence.
The petitioner's renewed request is here by way of the habeas court, which entered an order essentially restoring the application before the division. The basis for the restoration order was a stipulation dated March 20, 1992, which reads as follows:
The stipulation is signed by Christopher Morano, assistant state's attorney, and Temmy Ann Pieszak, assistant public defender. The habeas court, Scheinblum, J., granted the judgment in accordance with the stipulation and the order was signed by an assistant clerk.
Curiously, the state now joins with counsel for the petitioner urging the division to undertake review again with both agreeing that a six year sentence would be more appropriate. The only difference is that the petitioner is asking for a straight six years and the state is asking for fifteen years suspended after six with three years of probation.
Counsel for the petitioner and the state argue that the division is imbued with equitable powers which permit a relaxation of the thirty day provision of the Practice Book and statute. In addition, the petitioner analogizes the present case to Fredericks v. Reincke, 152 Conn. 501, 208 A.2d 756 (1965), in which the Connecticut Supreme Court upheld the habeas court's restoration to the docket of a tardy appeal after finding the defendant's constitutional right to counsel to perfect his appeal had been violated. Further, the claim by the petitioner is that General Statutes § 52-470 confers power on the habeas court to "dispose of the case as law and justice require."
It must be first pointed out that this division is a statutorily created body. General Statutes § 51-194. A person who has been sentenced to a non-minimum mandatory term of three years or more may, within thirty days from the date the sentence was imposed, file an application for review. General Statutes § 51-195. State v. Johnson, 192 Conn. 471, 478, 472 A.2d 1267 (1984). As a statutorily created body, the division's jurisdiction is limited to the parameters set forth in the statute; the division does not have jurisdiction over applications filed after the thirty day time period. State v. Morrissette, 29 Conn.Sup. 131, 275 A.2d 284 (1971); State v. Zappone, 28 Conn.Sup. 196, 256 A.2d 521 (1968). State v. Malkowski, 189 Conn. 101, 105, 454 A.2d 275 (1983). Subject matter jurisdiction cannot be waived or conferred by the parties. U.S. Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985).
The petitioner urges the division to apply the reasoning of Fredericks v. Reincke, supra, in which the Connecticut Supreme Court...
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